Ligon et al v. BAC Home Loans Servicing LP

Filing 26

ORDER adopting with exceptions noted in order on 20 Final Report and Recommendation. Denying 3 Plaintiffs' Motion for Summary Judgment and granting 7 Defendant's Motion to Dismiss. Clerk shall close the case. Signed by Judge Richard W. Story on 09/25/2012. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROBERT LIGON and
KADIJI TOWNSEND,
Plaintiff,
v.
BAC HOME LOANS
SERVICING LP, a/k/a
Bank of America, N.A., a/k/a
Bank of America, N.A.
Corporation,
Defendant.

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CIVIL ACTION NO.
1:11-CV-3811-RWS

ORDER
This case is before the Court for consideration of the Report and
Recommendation (“R&R”) [20] of Magistrate Judge Janet F. King. Defendant
and Plaintiffs have filed Objections [22 and 25] to the R&R. After reviewing
the record, the Court enters the following Order.
In the R&R, Judge King noted that Plaintiffs appeared to have alleged a
claim for wrongful foreclosure and found that if a foreclosure has occurred,
Plaintiffs may be able to state a claim for wrongful foreclosure. (R&R at 30-

AO 72A
(Rev.8/82)

31.) Accordingly, Judge King recommended that Defendant’s Motion to
Dismiss be denied as to the claim for wrongful foreclosure. In its Objections,
Defendant objects to the recommendation because it asserts that no foreclosure
occurred. (Def.’s Objs. at 3.) In fact, in their Objections, Plaintiffs
acknowledge that they are not making a claim based on foreclosure. (Pls.’
Objs. at 2.) Therefore, Defendant’s objection to the recommendation is
SUSTAINED. Because a foreclosure has not occurred, Plaintiffs may not
maintain a claim for wrongful foreclosure. Caselli v. PHH Mortg. Corp., 2012
U.S. Dist. LEXIS 4949, at *16 (N.D. Ga. Jan. 13, 2012). Therefore, the Motion
to Dismiss is due to be granted as to any claim for wrongful foreclosure.
Defendant also objects to the failure to recommend dismissal of
Plaintiffs’ putative class action claims because all of Plaintiffs’ substantive
claims are being dismissed and Plaintiffs may not assert a pro se class action.
In light of the Court’s ruling regarding the wrongful foreclosure claim, the
Court agrees that all of Plaintiffs’ substantive claims have been dismissed, and
therefore, the class action should also be dismissed. Further, pro se litigants are
not permitted to represent a class. Wallace v. Smith, 145 F.App’x. 300, 302
(11th Cir. 2005). Thus, the class action claim is subject to dismissal on this
ground as well.
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AO 72A
(Rev.8/82)

The Court has considered the Objections filed by Defendants. However,
the Court finds that the R&R sufficiently addresses the issues raised by
Plaintiffs.
With the exceptions noted above, the Report and Recommendation is
received with approval and adopted as the Opinion and Order of this Court.
Accordingly, Plaintiffs’ Motion for Summary Judgment [3] is DENIED, AS
MOOT; Defendant’s Motion to Dismiss [7] is GRANTED. The Clerk shall
close the case.
SO ORDERED, this 25th day of September, 2012.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

3
AO 72A
(Rev.8/82)